LSJ 320A Week 3 notes
LSJ 320A Week 3 notes LSJ 320
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This 12 page Class Notes was uploaded by Taylor McAvoy on Friday October 14, 2016. The Class Notes belongs to LSJ 320 at University of Washington taught by Professor Mayerfield in Fall 2016. Since its upload, it has received 47 views. For similar materials see International Human Rights in LSJ at University of Washington.
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Date Created: 10/14/16
Week 3 Lecture 6 Monday, October 10, 2016 Universal Declaration of Human Rights Social and Economic rights- should they be considered human rights? Articles in the UDHR 6-11 are rights you need to enjoy any other rights- legal due process rights 13-20 are personal freedom rights like religion, expression, assembly, and association among others Article 22 introduces socio-economic rights and social security- these are not specifically enshrined in the constitution Work, rest, leisure, living standard, education, and an obligation to teach human rights Articles 29-30 are social and international orders that require state, national, and international cooperation Some fear this section undermines international rights because it is vague and allows for differed obligation social and economic rights asserted in the UDHR (articles 22-27) The right to work, and digniﬁed conditions of work the right to form trade unions the right to rest and leisure the right to an adequate standard of living the right to social insurance against destitution the right to education The UDHR says these are human rights but are they really? Are these more than what is reasonably possible? Does this go too high for a level of aspiration? The principles of the UDHR like dignity and equal value require socio-economic rights for other rights to exist. The signiﬁcance of socio-economic rights: The range of individual protections is expanded. Economic policy should be placed in a human rights frame. A different approach to “development” Looks at individual autonomy "Development" is a means to an end- development is focused on basic socio-economic rights Should Human rights include socio-economic rights? The argument in favor: Socio-economic rights protect the same fundamental interests as civil- political rights. The argument against: Socio-economic rights are fundamentally different from civil-political rights. Because of these differences, only the latter are genuinely human rights. Some arguments against socio-economic rights: 1. They are not human rights because they imply positive duties, not negative duties. 2. They are not human rights because they do not assign duties to individuals. 3. They are not human rights because they do not lend themselves to legal enforcement. 4. They are not human rights because they fail to imply clear and speciﬁc obligations. …. In all these ways, they differ from civil-political rights Defenders of socio-economic rights deny these differences between socio-economic rights and civil- political rights; or they deny that these differences are morally signiﬁcant. Challenging socio-economic rights in the name of self-reliance: Should we deny that socio-economic rights are human rights because they promote dependence and undermine freedom? Socio-economic rights are less actionable and less clear about obligations- rights must specify a clear and specific obligation on someone to uphold Is it a human right if it requires a complex bureaucracy? Civil and political rights also have a complex bureaucracy EX: right to fair trial requires a judge, jury, lawyers, attorneys, time, money - If someone cannot afford a lawyer the government must provide them with one Not everything we like are human rights- we need national defense but it is not a human right Article 1: All human beings are born free and equal in dignity and rights.They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. Article 2: Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty. Article 3. Everyone has the right to life, liberty and security of person. Article 4. No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms. Article 5. No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. Article 6. Everyone has the right to recognition everywhere as a person before the law. Article 7. All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination. Article 8. Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law. Article 9. No one shall be subjected to arbitrary arrest, detention or exile. Article 10. Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him. Article 11. (1) Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence. (2) No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed. Article 12. No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks. Article 13. (1) Everyone has the right to freedom of movement and residence within the borders of each state. (2) Everyone has the right to leave any country, including his own, and to return to his country. Article 14. (1) Everyone has the right to seek and to enjoy in other countries asylum from persecution. (2) This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations. Article 15. (1) Everyone has the right to a nationality. (2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality. Article 16. (1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution. (2) Marriage shall be entered into only with the free and full consent of the intending spouses. (3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State. Article 17. (1) Everyone has the right to own property alone as well as in association with others. (2) No one shall be arbitrarily deprived of his property. Article 18. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance. Article 19. Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. Article 20. (1) Everyone has the right to freedom of peaceful assembly and association. (2) No one may be compelled to belong to an association. Article 21. (1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives. (2) Everyone has the right of equal access to public service in his country. (3) The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures. Article 22. Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality. Article 23. (1) Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment. (2) Everyone, without any discrimination, has the right to equal pay for equal work. (3) Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection. (4) Everyone has the right to form and to join trade unions for the protection of his interests. Article 24. Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay. Article 25. (1) Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control. (2) Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection. Article 26. (1) Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit. (2) Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace. (3) Parents have a prior right to choose the kind of education that shall be given to their children. Article 27.(1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientiﬁc advancement and its beneﬁts. (2) Everyone has the right to the protection of the moral and material interests resulting from any scientiﬁc, literary or artistic production of which he is the author. Article 28. Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized. Article 29. (1) Everyone has duties to the community in which alone the free and full development of his personality is possible. (2) In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society. (3) These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations. Article 30. Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein. Week 3 Lecture 7 Wednesday, October 12, 2016 Go back and re-read the UDHR again and again Civil and Political vs Social and Economic rights Survival rights cuts across civil/political and social/economical rights - a different way to explain the UDHR and divide it up Some arguments against Socio-economic rights 1. They are not human rights because they imply positive duties(require people to take action), not negative duties (require people not do take action). Positive rights have two definitions 1. Gives other's the positive duty to take action 2. Rights enforced by law 2. They are not human rights because they do not assign duties to individuals. 3. They are not human rights because they do not lend themselves to legal enforcement. 4. They are not human rights because they fail to imply clear and speciﬁc obligations. …. In all these ways, they differ from civil-political rights Defenders of socio-economic rights deny these differences between socio-economic rights and civil- political rights; or they deny that these differences are morally signiﬁcant. Should we deny that socio-economic rights are human rights because they promote dependence and undermine freedom? Challenging socio-economic rights in the name of self-reliance: David Kelley Argument: we are more self-reliant when we know no one will come to our aid The right to food and basic needs doesn't mean they are free The right to work for needs and earn that sustenance Right to access sustenance and society can place conditions on getting that need Positive duties limit freedoms on the rights of individuals whereas negative tights promote freedom rather than place an obligation Civil/Political rights and Social/Economic rights imply both negative and positive rights in some cases Cultural relativism as a challenge to universal human rights The UDHR proclaims human rights and also universal duties- criticized to ignore different cultures The claim: Human rights are not universal, but vary from culture to culture. Right and wrong are different between cultures There is no one value across all cultures Examples of practices that some regard as violations of universal human rights and that others defend in the name of culture: Segregation of men and women; inequality of men and women; female genital cutting; laws against blasphemy and apostasy; discrimination against sexual minorities; “Asian Values”; the death penalty. Amnesty International is trying to abolish the death penalty on human rights grounds Asian Values- priority of the collective and order above the individual- economic and cultural success comes before the individual rights What do you think? Argument: Moral claims are the product of particular cultures, and apply only within those cultures. People from one culture should respect people from another culture Implication: The claims in the UDHR are a product of Western culture and do not apply outside the West. Many add: The human rights movement is Western imperialism in a new form. Attractive language that imposes values on other societies and uses that to invade on other countries History of western imperialism in the name of civil liberties and universal values What do you think? A classic statement of cultural relativism: The 1947 statement of American Anthropological Association “If we begin .. with the individual, we ﬁnd that from the moment of his birth not only his behavior, but his very thought, his hopes, aspirations, the moral values which direct his actions and justify and give meaning to his life in his own eyes and those of his fellows, are shaped by the body of custom of the group of which he becomes a member.” “The individual realizes his personality through his culture, hence respect for individual differences entails a respect for cultural differences.” The statement concludes with a demand that the UDHR uphold “the right of men to live in terms of their own traditions.” Implies the need for a large watering down of the UDHR Arguments against cultural relativism No culture is perfect. Therefore, no culture should be immune from criticism. Cultural diversity is compatible with human rights.- a variety of beliefs and practices if cultures respect certain limits Cultures are internally diverse, and change over time. Why talk of discrete “cultures” may itself be misleading. Alan Ryan: “There is only one culture, and all of it is our culture.” Our beliefs and values are not determined by our cultures. The idea of human rights, when not distorted, is opposed to imperialism. Week 3 Section 4 Tuesday, October 11, 2016 the differences between the UN Charter and the UDHR questions: 1. What are civil/political rights? Give examples. Which section of the UDHR includes them? The Bill of rights? 2. What are social/economic rights? Give examples. Which section of the UDHR includes them? The Bill of rights? 3. Some say soc/eco rights are NOT human rights. How/why do they make this argument? Are you convinced? Why or why not? 4. Some say soc/eco rights ARE human rights. How/why do they make this argument? Are you convinced? Why or why not? 5. So should human rights properly include soc/eco rights? We also briefly looked at what is referred to as "Cassin's Portico" which you can google search. It's a drawing or diagram which theorizes that all rights are essential or the idea of rights collapses. free write was to define in a sentence or two these terms: sovereignty, colonization, first generation rights, and asylum Week 3 Section 5 Thursday, October 13, 2016 Column 1 Civil rights Double Jeopardy protection Access to a lawyer Freedom of speech Negative rights First generation rights Fundamental rights Right to culture Column 2 Social rights Economic rights Food Survival rights Health care Second generation rights Labor conditions Questions 1. In 1947 did the American Anthropological Association think the Human Rights Commission could legitimately create a list of universal rights? Why or why not? 2. Take their position seriously. Make the strongest possible argument in favor 3. What does Ignatieff say about universal human rights? What kinds of objections does he respond to? Is he convincing? Why or why not? 4. Human rights are not universal; they vary from culture to culture. True or False. Why or why not 5. What is culture? Is a list of human rights Is the UDHR the appropriate possible? list? Extreme cultural relativist No No American Anthropological Yes/ Maybe No - Skeptical about UDHR Association Universalist Yes Yes/ Maybe Week 3 Lecture 8 Friday, October 14, 2016 Michael Ignatieff Moral individualism is the core of human rights- this still means we are social people Human rights address our social side with association, religion, communication, culture Culture can sustain but also stifle individual freedom Thus individuals need protection from culture "There will always be conflicts between individuals and groups, and rights to exist to protect individuals." Singles out times when cultures are oppressive individual rights The UDHR as an expression of Western shame, not Western triumphalism Acknowledgement of shameful past and behavior to change actions and values- reflection of WWII Claim in Asian Values thesis- only when people have food and shelter and necessities can they then have human rights Counter- socio-economic give rise to civil-political rights EX: India went through periodic famine before independence- After independence it has problems but not another famine because people have the power to stop that "Great Leap Forward" millions of people in China died- no civil and political rights International law Set of rules created by the international community The international community- countries meeting amongst themselves The rules they come up with shape trade, communication, war- makes it possible for us to function together Huna Hathaway- passage about invisible but powerful law Important because people recognized domestic human rights regulations are insufficient and we need them internationally to prevent things like WWII Conventions around the world after WWII that generated international human rights law General observations about international law: By and large, created by states- made by states to restrain states Predominantly, but not exclusively, addressed to states- sometimes insurgent groups Before World War II, it was generally the case that only states, not individuals, possessed standing under international law. This is no longer the case. Why not? The United States, like every country in the world, is bound by international law. US Const, Art. VI: “This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land.” Art. III: “The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority….” Art. I, sec. 8. “Congress shall have Power … to deﬁne and punish … Offenses against the Law of Nations.” International law and domestic law sometimes have different sources Sources of domestic US law: Statutes Common law (a tradition of judge-made law not based in statutes and originally derived from custom) Constitution Judicial opinions Administrative regulations Sources of International Law: Treaties (conventions): formal, legally binding agreements between states * International custom: general practice of states accompanied by a sense of legal obligation * General principles of law: underlying principles of law recognized in the domestic legal systems of most nations * “Judicial decisions and the teachings of the most highly qualiﬁed publicists” (a subsidiary means of determining the law)* * See the Statute of the International Court of Justice, art. 38 jus cogens: literally, “compelling law.” A norm so fundamental that it overrides treaty law and customary law † † See the Vienna Convention on the Law of Treaties, art. 53.